C.M. Nayar, J. - (1.) THE present writ petition has impugned the show cause notice dated March 27, 1992, (Annexure P -1), issued by respondent No. 1 Collector of Customs, New Delhi. The petitioner company is engaged in the business of manufacture and sale of a wide range of air -conditioners. The consignment in dispute related to 18 pieces of Micro Processor Controllers. The said goods were cleared after assessment vide Bill of Entry No. 264552 dated November 15, 1989. The show cause notice, however, states that the goods, which were imported, related to 22 pieces although it is contended by learned Counsel for the petitioner that the import only related to 18 pieces. There is no dispute to the fact that the said goods were cleared on November 15, 1989. Respondent No. 1 issued show cause notice dated March 27, 1992, under Section 28 of the Customs Act, 1962, (thereinafter referred to as the Act). Paragraph 8 of the said notice may be reproduced as follows: In the circumstances M/s Fedders Lloyd Corpn. Ltd. New Delhi, Shri B.R. Punj Managing Director of the Company, Dr. R.K. Malhotra, Executive Director of the Co. and Shri A. Dayal, Dy. General Manager of the Company are hereby called upon to show cause in writing within 15 days of receiving this notice to the undersigned as to why: (i) the 22 pcs. of micro processor imported and cleared vide B/E No. 2264552 dt. 15.11.1989 (IGM 8978/89 dt. 22.10.1989) should not be reassessed under CTH No. 8415.90. (ii) the differential duty amounting to Rs. 1,79,290/ - should not be recovered from them under Section 28(2) of the Customs Act, 1962. (iii) They should not be penalised under Section 112 of the Customs Act, 1962. The petitioners were, Therefore, asked to file the written Explanation and reply to the show cause notice.
(2.) THE petitioners felt aggrieved by this issuance of notice and has impugned the same by filing the writ petition. I have heard learned Counsel for the parties. The main contention of the learned Counsel for the petitioner is that the show cause notice issued under the provisions of Section 28 of the Act is without jurisdiction and cannot be sustained. Therefore, it is liable to be quashed. He has specifically relied on the provisions, as contained in Section 28(1) of the Act which may be reproduced as follows: 28. Notice for payment of duties not levied, short -levied or erroneously refunded -(1) When any duty has not been levied or has been short -levied or erroneously refunded, the proper officer may, (a) in the case of any import made by any individual for his personal use or by Government on by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been so short -levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Provided that where any duty has not been levied or has been short -levied or has been erroneously refunded by reason of collusion or any willful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub -section shall have effect (as if) for the words "one year" and "six months" the words "five years" were substituted. It has been argued that the goods were cleared on November 15, 1989 and the show cause notice could only be issued within a period of six months, as provided by Section 28(1)(b). Therefore, the said notice is without jurisdiction and bad in law.
(3.) THE present petition can be disposed of on the short ground that the petitioner has only been issued a show cause notice on March 27, 1992 and reply is yet to be filed. The petitioners shall be at liberty to file their reply to the said show cause notice and take all the objections, including the plea of jurisdiction before the appropriate Authority, respondent No. 1 herein. The said respondent shall then consider the reply and the Explanation of the petitioner and shall proceed according to law after providing adequate opportunity in hearing the matter. The petitioners shall also be free to pursue their statutory right of appeal as well as recourse to proceedings under Article 226 of the Constitution of India and such proceedings to which the petitioners may be entitled to have recourse in accordance with law. In view of the above no further orders are necessary in this writ petition. The same is accordingly disposed of. No order as to costs.;